CASE NAME: IT v. ANT
CASE NUMBER : MAT.APP.(F.C.) 55/2025
DATE : 4 November 2011
QUORUM: Justice Anil Kshetarpal, Justice Harsh Vaidyanathan Shankar
FACTS
The appellant and the respondent got married on 10.03.2013 in accordance with the Hindu rites and practices. The appellant who is a Russian national and a Christian got converted to Hinduism for the marriage, and the respondent initially resided in Noida and later in Dehradun. The parties were blessed with a baby girl who was born in Russia on 08.06.2021 and holds a Russian passport. After her birth, the couple returned to India and lived in Dehradun. Later, the Appellant herein had filed a petition seeking divorce which is pending adjudication.
The Respondent herein had filed the applications under Section 7, 8 and 9 of the Guardians and Wards Act, 1890 for permanent custody before the Ld Family Court, Dehradun which was subsequently transferred to Ld Family Court, Patiala House Courts, New Delhi in G.P No. 37/2024. The court restrained the appellant from removing herself and the child out of India without seeking the Court’s prior permission. The appellant sought recall of this order, however her application was rejected and the respondent was granted interim custody. The present Appeal is filed by the Appellant under Section 19 of the Family Courts Act, 1984, against the Interim Order dated 01.02.2025 passed by the Ld Judge, Family Court, Patiala House Courts, New Delhi in G.P No. 37/2024,
ISSUES
- Whether Section 6 of the Hindu Minority and Guardianship Act, 1956 should be given primacy when there exists a reasonable apprehension that one of the parties may remove the child from the jurisdiction of the Indian courts.
- Whether the Ld Family Court was justified in granting interim custody to the father and restraining the mother from leaving India.
LEGAL PROVISIONS
- Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMG Act, 1956) states that the natural guardian of a Hindu minor in respect of the minor’s person as well as in respect of the minor’s property is originally the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
- Section 7 of the Guardians and Wards Act, 1890 deals with the power of the Court to make order as to guardianship.
ARGUMENTS
APPELLANT : Learned Senior Counsel for the Appellant contended that as per the provisions of the HMG Act, particularly Section 6 which provides that the natural guardian of a Hindu minor, who is under 5 years of age, is ordinarily the mother. In the instantaneous case, as the daughter is under five years, the natural guardian will undeniably be the appellant. Further, it was contended that the Impugned Order does not find any fault or deficiency in the Appellant, and without such a finding having been rendered by the learned Family Court, the provisions of the HMG Act would necessarily have to be given full effect, and the child being under 5 years of age, it is the mother who should be entitled to have the custody of the minor child.
RESPONDENT:
The learned counsel for the Respondent contended that the Appellant herein is a foreign national holding a Russian passport, who has been living the life of a nomad, has an irresponsible disposition and has no secure and stable source of income. In such circumstances, the Appellant does not have the means to take care of the child and is also the person who cannot be trusted to take care of the minor daughter. Further it was contended that Appellant and the child, both being Russian citizens, and considering the past attempts made by the Appellant to secure exit permits to flee the country, there arises a more than reasonable apprehension in the minds of the Respondent that the Appellant would seek to flee the country with the minor child. Thereby, in the event of such a circumstance, the efforts of the Respondent and all legal proceedings as are currently pending before the Indian Courts would effectively stand nullified.
ANALYSIS
The Delhi High Court after the perusal of the records and arguments submitted, observed that the impugned order was purely interim and aimed at safeguarding the child’s welfare pending final adjudication. The Family Court had based its decision on the apprehension that the appellant and child might exit India permanently, which would frustrate all ongoing proceedings. The Respondent’s relative stability, permanence and ability to provide to the minor daughter was considered as well.
It is in this view that in the best interest of the child, the custody be with the Respondent and the Appellant’s interests were safeguarded to a fair extent as well. The Hon’ble Supreme Court has time and again, through various judgments, including in Sheoli Hati v. Somnath Das, (2019) 7 SCC 490 emphasized on the fact that the welfare of the child is paramount and the same would prevail over the parental rights of the parties. Also, it is evident that the Appellant has decided to leave India, and that she may never return back as well. The case, Viktoria Basu Vs. The State of West Bengal, W.P (Crl) No. 129/2023 remains pending before the Hon’ble Supreme Court as the the child was “snatched” from the jurisdiction of the Court and the proceedings were frustrated. The entire process of adjudication would be rendered meaningless if Courts were unable to implement or enforce any orders/ Judgment that were the resultant of the adjudicative process.
JUDGEMENT
In the instantaneous matter, the Division Bench decided that in view of the circumstances and position of law, no interference is required into the impugned order. The Impugned Order is not, in any manner, to be faulted. Accordingly, the present Appeal, along with pending application, if any, was dismissed.
CONCLUSION
It could be concluded that this judgment marks yet another glaring example where the welfare and the best interest of the minor child remains the paramount consideration of the Courts in deciding custody related matters. By granting interim custody to the father which would ensure a secure and settled environment along with safeguarding the mother’s visitation and communication rights, the Court ensured that the minor’s overall welfare stood protected.
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WRITTEN BY – AMYUKTA RAJAGOPAL
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